Wednesday, August 1, 2007

The Prosecutor's Heuristic

Even among those who are completely convinced that Mr. Cuadra and Mr. Kerekes committed these crimes, one can still find a certain reticent acknowledgement that the weakest part of the prosecution’s case is the intrepid "Batter-boys"’ motive.

It’s a niggling question that gets swept aside in broad terms: “these guys aren’t too bright;” or “sounds like they were tweaked;” or “people will kill each other for the dumbest reasons.”

Those summary dismissals are just a trifle intellectually dishonest.

When noted LA prosecutor Vincent Bugliosi was preparing for the trial of the Manson Family, he came across the Motive relatively early: the Beatles had told Mr. Manson to do it... right there on the White Album. Understandably, Bugliosi was not at all certain about the wisdom of presenting such a screwy thing as Motive. But he eventually went ahead with it, and was lucky in that Mr. Manson and his minions confirmed in court that they were indeed pretty screwy folks.

Obviously, Mr. Cuadra and Mr. Kerekes are not so screwy as that. But their Motive, as characterized so far by the Commonwealth, is not very rational.

So how does the DA get from here to there?

To start, the obvious... submerge Harlow and Joe in circumstantial muck: they made all the preparations; they went to Wilkes-Barre; they were in the Kocis house; they had a bright, shiny new knife; their rental car was seen leaving; they called Sean Lockhart to tell him about the murder; they lied to the press; they confessed at Black’s Beach; Kocis’ video cameras were in their house (maybe), etc.

And that puddle of muck may be deep enough to drown in. I daresay the puddle alone will persuade a jury that even if Cuadra and Kerekes didn’t actually do the evil deeds, they sure as heck were thinking about it.

But why were they thinking that way?
The most obvious possible answers cover well-trodden speculative ground:

Ambition? By all accounts, Cuadra and Kerekes had a thriving business life. Up until 2005, they bought and sold real state regularly (and at a profit.) had all the earmarks of a successful venture. Presumably, Cuadra and Kerekes wanted more. Can it be that they viewed snagging Brent Corrigan as their best possible chance at the “big time?” After all, Brent’s Falcon video had just been released three months before Boybatter went after him.

Was it their debts? Despite their legal plans for it, Virginia law enforcement refers to Norfolk Companions as small potatoes, but Cuadra’s and Kerekes’ credit approvals say otherwise. The house was expensive and already had a second mortgage on it. Harlow and Joe had a passion for cars and pricey timepieces. Their entire lifestyle seems to have been propped up by credit-card debt. Could that uncomfortable reality made them desperate to make a big video splash?

Was it a sexual fixation? The romantics in the audience will tell you that Cuadra “obviously” had a thing for Brent Corrigan, and was willing to do anything to get hold of him. As tenuous as that theory may be, would a jury buy it? We gay people are about nothing but sex anyway, right? Ask any anti-gay, fundamentalist Christian; they’ll tell ya so.

What hasn’t been talked about much is the prospect that the murder was about simple, base sociopathy. That’s as in, was it enough that Cuadra and Kerekes wanted something and somebody was in their way? Can it be that Harlow and Joe just considered that predicament calmly before deciding that Kocis’ removal was in their interests and was something they could get away with?

So often, the most straightforward explanations turn out to be true.

Now, with such a smorgasbord of possible Motives, which shall the State choose? Or which of them will prosecutors seek to mash together?

Turns out, they may not choose one at all.

By statute, the prosecution is under no obligation to show a Motive (much less prove one) in this case, or any other. It is not part of the prima facie case, nor does its lack (by itself) constitute reasonable doubt.

No, the oft-intoned mantra “Motive, Means, Opportunity” (MMO) is an heuristic, not a juridical standard. That is to say, hopes of satisfactorily providing MMO may underlie the structure of the prosecution’s case—in an attempt to meet a jury’s expectations—but at no point is there any actual requirement that the State do so, or prove it.

And so, prosecutors may just illuminate the path to the murder, and let the jury decide where it began.